The Jamal Khashoggi Murder from the Perspective of Turkish Criminal Law and Turkish-Saudi Relations

Türk Ceza Hukuku ve Türk-Suudi İlişkileri Açısından Cemal Kaşıkçı Cinayeti

Emirhan KAYA, Özgün ÖZYÜKSEL

According to the evidence and the verdict given by the Saudi Arabian judiciary, journalist Jamal Khashoggi was murdered on 2 October 2018 at the Royal Consulate General of Saudi Arabia in Istanbul. This murder, which has taken an important place in the agenda of the United Nations (UN), the United States of America (USA), Europe and the Middle East for a long time, includes many debates concerning different disciplines. In this study, which deals with the issue in terms of Turkish criminal law and Turkish-Arab relations, the failures and illegalities in the investigation and prosecution carried out in Turkey were tried to be revealed with the main lines, and then it was tried to explain why Khashoggi was silenced, how the Khashoggi case was related to Turkish-Saudi relations, and why Turkey was chosen as the crime scene.

Jamal Khashoggi, Turkish Criminal Law, Consular Privileges and Immunities, Turkish-Saudi Relations, Middle East.

Kanıtlara ve dahi Suudi Arabistan yargısının verdiği hükme göre gazeteci Cemal Kaşıkçı, 2 Ekim 2018’de Suudi Arabistan’ın İstanbul Başkonsolosluğunda katledilmiştir. Uzun süredir Birleşmiş Milletler (BM), Amerika Birleşik Devletleri (ABD), Avrupa ve Ortadoğu’nun gündeminde önemli yer tutan bu cinayet, farklı disiplinleri ilgilendiren pek çok tartışmayı da içinde barındırmaktadır. Konuyu Türk Ceza Hukuku ve Türk-Arap ilişkileri açısından ele alan bu çalışmada, Türkiye’de yürütülen soruşturma ve kovuşturmadaki aksaklıklar ve hukuka aykırılıklar ana hatlarıyla ortaya konmaya çalışılmış, ardından da Kaşıkçı’nın neden susturulduğu, Kaşıkçı davasının Türkiye-Suudi ilişkileriyle nasıl bağlantılı olduğu ve olay yeri olarak neden Türkiye’nin seçildiği açıklanmaya çalışılmıştır.

Cemal Kaşıkçı, Türk Ceza Hukuku, Konsolosluk Ayrıcalıkları ve Dokunulmazlıklar, Türk-Suudi İlişkileri, Ortadoğu.

Introduction

The appalling execution of Saudi journalist and columnist Jamal Khashoggi at the Saudi Consulate in Istanbul on October 2, 2018, was a scandalous affair that had legal and international political dimensions. As a result of the investigation carried out in Saudi Arabia about the murder of Khashoggi, the five death sentences were overturned in November 2019, while the trial proceeded in the absence of the suspects in Istanbul was handed over to Saudi Arabia in April 2022. On the other hand, the efforts of the Turkish media to shed light on the issue and the leaking of the details about the murder, revealed Turkey’s discomfort with being involved in this issue. The murder that took place on Turkish soil, not only strained the bilateral relations, but also hurt the image of the Turkey considerably.

In line with the aim of examining the subject from the perspectives of two different disciplines, the article has two main parts. In the first part, after the summary of the incident is given, the murder will be analyzed briefly within the framework of the Turkish Penal Code (TPC). Then, the investigation and prosecution carried out in Turkey will be summarized and evaluated according to Turkish law. In the second part, it will be explained how the Khashoggi case is related to Turkish-Saudi relations and why Khashoggi was seen as a public figure to be silenced immediately. It is underlined that the dependence of Saudi Arabia on US support for regime survival prompted an irrational response by Saudi officials to Khashoggi’s criticism. Moreover, Turkey, as the place where the murder was committed, was targeted by the Saudis as its rising image had disturbed its regional rivals.

I. The Khashoggi Murder from the Perspective of Turkish Criminal Law

The purpose of criminal procedure is to reveal the factual truth by respecting human rights. According to the (Turkish) Criminal Procedure Code (CPC) No. 5271, criminal procedure consists of two phases as “investigation” and “prosecution”¹ . As the details will be explained below, since the Istanbul 11th Court of Assize (Istanbul Court) that conducted the prosecution ultimately decided to dismiss the case, unfortunately, the factual truth could not be revealed by the Turkish judiciary. Therefore, it has become necessary here to summarize this brutal murder by making use of the details given in “the Annex to the Report of the Special Rapporteur² on extrajudicial, summary or arbitrary executions: Investigation into the unlawful death of Mr. Jamal Khashoggi” (“Annex”)³ .

According to Annex, “(76) ... on 27 September 2018, a Saudi Security Screening Team swept the Saudi Consulate in Istanbul for bugs and other surveillance equipment⁴. (77) On the morning of 28 September, ... Mr. Khashoggi ... entered the Consulate ... He ... was treated very well. ... felt relieved and did not hesitate going there again.’ Consular officials he spoke to told him that he would need to return on 2 October 2018 to obtain the marriage document. Mr. Khashoggi flew back to London on the afternoon of 28 September ... (78) According to Turkish Intelligence, even before Mr. Khashoggi’s plane took off from Istanbul at 14:40, information that he had been at the Consulate, and would return on October 2, had been relayed to Riyadh.” Then, the members of 15-man⁵ Saudi assassination team, whose names are written in table-A on page 18-19, came to Turkey on October 1 and 2. At 13:02, inside the Consulate, Mutreb and Tubaigy had a conversation about their plan to get rid of Khashoggi’s dead body, just minutes before Khashoggi entered. “At the end of the conversation, Mutreb asked whether ‘the sacrificial animal’ has arrived. At 13:13, a voice said, ‘he has arrived.’⁶ ” Subsequently, after the welcome, Khashoggi was told that he would be taken back to Saudi Arabia, and Khashoggi opposing this said ‘There is a towel here. Are you going to give me drugs?’ and he was answered “We will anesthetize you.” at 13:33. Afterwards, “Sounds of movement and heavy panting could be heard in the remainder of the recordings. The sound of plastic sheets (wrapping) could also be heard. Turkish Intelligence concluded that these came after Mr. Khashoggi’s death while the Saudi officials were dismembering his body. The Turkish Intelligence assessment identified the sound of a saw at 13:39. The Special Rapporteur and her delegation could not make out the sources of the sounds they heard.⁷ ” Turkish Intelligence assessed that Khashoggi may have been murdered within ten minutes after entering the Consulate⁸ . At 15:53, Almadani was seen leaving the Consulate through the back door, wearing Khashoggi’s clothes⁹ . Less than 24 hours after the murder, all members of the 15-man assassination team left Turkey¹⁰ .

According to Art. 8/1 of the Turkish Penal Code (TPC) No. 5237, “Turkish law shall apply to all criminal offences committed in Turkey. Where a criminal act is partially, or fully, committed in Turkey, or the result of a criminal act occurs in Turkey the offence shall be presumed to have been committed in Turkey.” Khashoggi was murdered at the Royal Consulate General of Saudi Arabia in Istanbul. There is no doubt that the consular premises¹¹ -regardless of who owns them- are included in the country they are located in, that is, the territory of the Republic of Turkey. Indeed, the opinion that “the land on which the consulate buildings are located is included in the territory of the foreign State” is nothing but a mumpsimus¹² . In this respect, it should be underlined that the crime was entirely committed in Turkey, and -as a consequence of territoriality principle¹³ (Art. 8/1)- Turkish law is applicable to this criminal act which disrupts the Turkish public order. Turkish judicial authorities have not experienced any hesitation in this regard either.

Art. 81 of the TPC provides that “Any person who intentionally kills another shall be sentenced to life imprisonment.” And according to the next article, “If the act of intentional killing is committed: a) With premeditation, b) With cruel/brutal feeling or through torment ... the offender shall be sentenced to aggravated life imprisonment.” It is understood that Khashoggi was killed intentionally, and there was no legitimate defense or any other justification. Moreover, since the victim was killed coolly within the framework of a detailed plan and in as little as ten minutes¹⁴ , it can very well be said that the act complied with art. 82/1-a and required aggravated life imprisonment^15,16 .

The applicability of art. 82/1-b should also be analyzed. First of all, the “monstrous feeling” is an aggravating factor related to the psychology of the perpetrator. In order to accept that the crime was committed with a monstrous feeling, according to the prevailing view, the victim should be killed “sadistically, just for satisfaction, without any other reason”¹⁷ . In this respect, it cannot be said that the perpetrators who committed the murder with “political motives” acted with a “monstrous feeling”. On the other hand, committing the crime “through torment” is an aggravating factor related to the way the act was committed (modus operandi). If -as alleged- Khashoggi was killed by injecting an overdose of deadly liquid into his body¹⁸ or by strangling with a rope-like object¹⁹ or through both injection and suffocation²⁰ , and his body was dismembered after his death, this provision does not seem to be applicable to the case²¹ . On the other hand, if Khashoggi was butchered (in other words, if he was dismembered while alive²² ), then it can be said that the crime was committed through torment.

According to Annex, the murder was carried out by a 15-member Saudi assassination team. By whom the victim was caught, by whom he was anesthetized or by whom he was strangled, it could only be understood -of course- as a result of a fair and careful trial. For this reason, without going into the details of the closed case file here, it should principally be stated that anyone who has a functional control over the execution of the crime -whether they have directly contacted the victim or not- will be considered “the co-perpetrator of the crime”, pursuant to Art. 37/1 of the TPC²³ . Besides, it should be underlined that the people in the background who ensure the execution of the crime by organizing this assassination team should be considered as “co-perpetrators”, not “instigators”²⁴ . On the other hand, third parties, who do not have dominion over the execution of the crime but just deliberately facilitate its commission in any way, shall be sentenced to a mitigated penalty for his/her assistance, pursuant to Art. 39 of the TPC²⁵ .